1991 P Cr (PLP)

(i) Saleh Muhammad and Imtiaz Ahmad under section 302/34, P.P.C. to death sentence and a fine of Rs.5,000 or in default thereof two years' R.I. (ii) Fiaz Ahmad under section 302/34, P.P.C. to imprisonment for life and a line of Rs.5,000 or in default thereof two years' R.I. (iii) All the petitioners/convicts, under section 307/34, P.P.C. to five years' R.I. each and a fine of Rs.1,000 each or in default thereof one year's R.I. each. All the sentences were ordered to run concurrently.

2. The convicted accused filed Criminal Appeal No.705 of 1984 which was heard alongwith Murder Reference No.72 of 1985 by the Division Bench of this Court and was accepted on 28-5-1988 on account of the violation of the mandatory provisions of section 367, Cr.P.C. and of Rule 5, Chapter 19-A of the High Court Rules and Orders, Volume III and case was remanded to the trial Court with the directions to decide the same in accordance with law and on the evidence already recorded after hearing arguments. It may be noted here that no appeal or revision was filed by the State/complainant against the acquittal of Muhammad Riaz, petitioner, and nothing was observed against his acquittal in the judgment, dated 28-5-1988 of the Appellate Court (High Court).

3. On remand, the learned trial Court/Additional Sessions Judge, Kasur, not only summoned the convicted accused namely Saleh Muhammad, Imtiaz Ahmad and Fiaz Ahmad but also summoned the petitioner to face the trial. In pursuance of the process issued by the trial Court, the petitioner entered appearance on 7-7-198H. The trial Court framed the charge not only against his co-accused but also against him. Hence this revision.

4. The learned counsel for the petitioner has relied on 1970 S C M R 189 to contend that since the acquittal of the petitioner by the trial Court vide its order, dated 24-11-1984 has not been set aside and holds fields therefore, the trial Court could not have summoned the petitioner as an accused. Learned counsel for the State is not in a position to controvert him.

5. We have considered the matter carefully. We feel persuaded to agree with the learned counsel for the petitioner. We find that the petitioner was tried alongwith the co-accused and was acquitted of the charge. His acquittal was not challenged in appeal or revision. While deciding the appeal against the conviction and sentence of the co-accused, this Court has not specifically directed for the retrial of the petitioner. In- this view of the matter, we feel that under section 403 of the Cr.P.C. the retrial of the petitioner for the same offence is not possible. Section 403, Cr.P.C. reads as under:-- Section 403

(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236, or for which he might have been convicted under section 237. (2) A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which separate charge might have been made against him on the former trial under section 235, subsection (1). (3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted may be afterwards tried for such last mentioned offence, if the consequences had not happened or were not known to the Court to have happened, at the time when he was convicted. (4) A person -acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged. (5) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897, or section 188 of this Code.

6. Pursuant to the above discussion, this revision is accepted and the order of the trial Court, dated 18-6-1988 whereby the petitioner was summoned to face trial in the case and the charge framed against him on 7-7-1988 are set aside. M.B.A./M-3027/L Order accordingly.